By Jeffrey T. Donner, Esq.

Attorney’s fees often become the leverage point in post-divorce litigation. Sometimes fees are the necessary mechanism that allows a party to enforce a settlement agreement or court order. Other times, fee litigation turns into a second lawsuit—one that can outlast the underlying dispute and consume resources the court is trying to preserve.

In Schultheis v. Schultheis, No. 3D23-1250 (Fla. 3d DCA Oct. 29, 2025), the Third District Court of Appeal addressed a narrow but important question: whether section 61.16(1), Florida Statutes, permits a court to award “fees for fees”—attorney time spent litigating the amount of attorney’s fees to be awarded.

The decision is notable not only for the holding, but also because it includes a significant concurrence and partial dissent by Judge Emas and a certified conflict with another district’s decision. That combination signals that the issue is unsettled statewide and may ultimately require Florida Supreme Court guidance.

The Dispute in Plain English

The parties’ marriage ended in dissolution and they had a marital settlement agreement. The former wife later sought to enforce that agreement. The trial court entered an initial attorney’s fee order awarding fees she incurred in enforcement litigation. The Third District affirmed that initial fee order.

The dispute then shifted to a subsequent attorney’s fee order. The later order awarded additional fees—specifically, fees incurred by the former wife’s attorney in establishing the amount of fees he was claiming. In other words, the attorney spent time litigating how much the attorney should be paid, and the trial court required the former husband to pay for that time as well.

The former husband challenged that second award. The Third District reversed it.

The Legal Question: “Fees for Fees” Under Section 61.16

Florida generally follows the “American Rule”: each side pays its own attorney’s fees unless a contract or statute authorizes fee-shifting. Because fee statutes depart from the common law, courts strictly construe them.

The Florida Supreme Court’s leading case on “fees for fees” is State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993). Palma draws a familiar distinction:

1. Fees incurred litigating entitlement to fees can be recoverable in many contexts.
2. Fees incurred litigating the amount of fees are generally not recoverable, because that work is viewed as benefiting counsel rather than the client.

The question in Schultheis was whether section 61.16(1)—a family-law fee statute designed to address financial disparity—should be treated differently, particularly in post-judgment enforcement proceedings.

The Majority’s Holding: No “Fees for Fees” for Amount Litigation Under Section 61.16(1)

Judge Gordo, writing for the majority, affirmed the initial fee award but reversed the subsequent fee award insofar as it compensated the attorney for litigating the amount of the attorney’s own fees.

The majority’s reasoning had two main components.

First, the statutory text and strict construction. Section 61.16(1) authorizes a court to order one party to pay a reasonable amount for attorney’s fees, suit money, and costs to the other party of maintaining or defending proceedings under Chapter 61. The majority emphasized that the statute does not expressly authorize awarding fees incurred by an attorney litigating the amount of the attorney’s own fee claim, and courts may not expand fee statutes by implication.

Second, the statute’s purpose. The majority framed section 61.16 as a mechanism to ensure both parties have a similar ability to obtain competent counsel—not as a vehicle for open-ended, self-perpetuating fee litigation. The majority expressed concern that allowing “fees for fees” on the amount question reduces incentives to litigate fee amounts efficiently, encourages collateral fee disputes, and increases conflict—contrary to Chapter 61’s stated goals of promoting amicable settlement and mitigating harm from dissolution litigation.

The majority also certified conflict with the Fourth District’s decision in Schneider v. Schneider, 32 So. 3d 151 (Fla. 4th DCA 2010), which allowed fees for fees under section 61.16. Certified conflict is a major appellate signal: it acknowledges that Florida law is divided on the question and invites higher-court resolution.

The Dissent: Judge Emas Would Allow Discretion to Award “Fees for Fees”

Judge Emas concurred in the affirmance of the initial fee order but dissented from the reversal of the subsequent “fees for fees” award.

His disagreement was not merely about outcome; it was about how section 61.16(1) should be read and how Palma should be applied in family-law proceedings.

Judge Emas’s principal points:

Broad language matters. He emphasized section 61.16’s expansive phrase “any proceeding under this chapter,” arguing that a fee hearing—including a hearing to determine the amount—is part of the Chapter 61 proceeding. In that view, the statute’s language is broad enough to encompass fees incurred litigating the amount.

Section 61.16 is a unique fee statute. Unlike prevailing-party fee statutes, section 61.16 is designed to address financial imbalance so that both parties can secure competent counsel. Judge Emas argued that leaving a financially weaker spouse to absorb fees incurred in establishing the amount can undermine the statute’s leveling function—particularly where the wealthier spouse can prolong fee litigation as a pressure tactic.

Palma is contextual, not automatic. Judge Emas did not treat Palma as a blanket rule for every fee statute. He emphasized that Palma requires analysis of statutory text and statutory purpose. In his view, section 61.16’s text and purpose support trial-court discretion to award fees for amount litigation when equity requires it.

He would have followed Schneider (4th DCA) and certified conflict with the Second District’s approach in Wight v. Wight, 880 So. 2d 692 (Fla. 2d DCA 2004), reinforcing that the district courts are not uniform on this issue.

Why the Split Matters

A significant dissent plus certified conflict usually indicates that the legal issue is likely to persist, and the rule may not be stable long-term.

For families and litigants, the practical significance is straightforward:

First, fee disputes can change settlement dynamics. If “fees for fees” are categorically unavailable in amount litigation, parties have a stronger incentive to keep fee litigation tightly focused. If they are discretionary and recoverable, a party with fewer resources may be better protected against a wealthier party’s ability to prolong fee proceedings.

Second, strategy in post-judgment enforcement matters. Post-judgment enforcement and modification proceedings can become as expensive and protracted as the original dissolution. The ability (or inability) to recover certain categories of fee litigation costs can materially affect a party’s willingness and ability to enforce court-ordered rights.

Third, the law differs by district and is in flux. Because the Third District certified conflict with the Fourth District, similarly situated parties may face different outcomes depending on venue—at least until the Florida Supreme Court resolves the disagreement.

Practical Takeaways

1. Expect close scrutiny of fee claims tied to litigating the amount of fees, especially in the Third District.
2. In enforcement litigation, distinguish clearly between time spent establishing entitlement to fees (often recoverable) and time spent litigating the amount (now disallowed by the Third District majority in this context).
3. Recognize that this issue is not settled statewide; it is a live conflict among districts, and the rule may change depending on future appellate review.

Conclusion

Schultheis v. Schultheis highlights an increasingly common reality in family litigation: attorney’s fees can become the main event rather than a secondary consequence.

The Third District’s majority opinion draws a firm line against awarding fees incurred litigating the amount of an attorney’s own fees under section 61.16(1), emphasizing strict statutory construction and policy concerns about runaway fee litigation. Judge Emas’s dissent takes the opposite view, emphasizing the statute’s broad language, equitable character, and leveling purpose—particularly in disputes where one party’s financial disadvantage can be exploited through prolonged fee proceedings.

Because there is a recognized split among Florida’s district courts, this is an issue to watch closely.